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[2017] ZAGPJHC 147
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Gumbo v S (A130/2017) [2017] ZAGPJHC 147 (12 May 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO:
A130/2017
Not reportable
Not of interest to other judges
Revised.
In the matter between:
GUMBO
FANUEL
Applicant
and
The
State
Respondent
JUDGMENT
MATSHITSE AJ
[1]
This is an appeal against the
refusal by the Regional Magistrate Kempton Park from granting
Applicant bail wherein he is charged
with the offence of raping a
minor child of three years old.
[2]
The Applicant was arrested on the
14
th
of February 2017 and his bail hearing was heard on the 24 February
2017 wherein it was refused.
[3]
The Applicant now appeals against
the refusal of bail pending his trial
[4]
Applicant brought his application
for formal bail application by means of an affidavit with supporting
affidavits from, Bongani
Gumbo, with annexures attached thereto and
Sunnyboy Gumbo, his brothers. The State in opposing the application
they called the
Investigating Officer Nalebotse Mende Mamohale to
testify.
[5]
The question is whether
the applicant, having been given a reasonable opportunity to do so,
adduced evidence which satisfies the
court that exceptional
circumstances exist which in the interests of justice permit his
release
[6]
In short the facts of the
Applicant’s case are:
6.1.
He is 32 years old, born in
Plumtree Zimbabwe, he entered into a traditional marriage with one
Medisa Gomo in 2008 out of
which 2 boys, where born age 10 and 3
respectively.
6.2.
Together with his family they have
been residing with his brother Bongani Gumbo and his wife, for the
past 6 years, at number […]
C. Avenue Eastley Edenvale.
6.3.
He is self-employed transporting
children to school and crèche and also he is cleaning and
renovating swimming pools for
other people and he earns about R8
000.00 per month. His wife is doing odd jobs at restaurants and per
month she is earning about
R2 500.00. The 10 year old child is
attending school while the three 3 is still attending at crèche.
6.4.
The facts that led to his arrest is
that on day the 13
th
February 2017, in the morning, he collected the victim from her home
at Thornhill and transported her at Kempton Park. Later on
in the
afternoon at around 16h30 he picked her up from her crèche.
The normal route was for him to go and drop her at her
home.
6.5.
On that day, he did not take her
straight home, he went via Thembisa, as he wanted to view a motor
vehicle which was allegedly being
advertised for sale on Gumtree. He
took one of his brothers along being Sunnyboy Gumbo to accompany him
there.
6.6.
By the time he went to Thembisa he
was in the company of his brother and the alleged victim. They
returned late from Thembisa and
he dropped the child at her home of
which he apologised to the child’s grandmother. They then left
6.7.
The following day he received a
whatsup message from the child’s grandmother to the effect that
he should not come and take
the child to crèche. Later he
received call from the child’s crèche informing him that
a case of child molestation
has been opened against him at Sebenza
police station. He proceeded to the said police station and he was
informed that there was
no such case that has been opened against him
6.8.
He proceeded to the victim’s
house to also inquire, that is when the police were called and he was
interviewed as to why he
brought the child back home late, of which
he explained but at the end he was arrested.
6.9.
He denied committing the alleged
offence. DNA samples have been obtained from him. He referred the
court to the provisions of
section 60(4)
(a)-(e) of the
Criminal
Procedure Act 51 of 1977
. He is holder of a valid Zimbabwean passport
with a valid work permit.
6.10.
He can afford bail in the amount
R5000.00 and will comply with any conditions which the court may
impose upon him.
6.11.
His two brothers Bongani and
Sunnyboy Gumbo also filed their supporting affidavits confirming what
applicant had stated in his affidavit.
[7]
The facts of the State case in
short, through the testimony of the Investigation Officer are :
7.1.
The grandmother of the child had
told him that after the applicant had brought the child back home at
around 19h45, just before
they went to bed, she played with the
child.
7.2.
The child then told her that she is
feeling pains on her private part (vagina), she then inspected her,
saw something that she did
not understand, she found that the child
was slightly injured some sort of swelling. She then took her to
Sunninghill hospital.
The doctor then completed J88 and observed that
the child had bruises in the vagina and the vagina was swollen, there
were abrasions
found on labia majora and posterior fourchette and the
hymen was externally swollen and bruised.
7.3.
The doctor took some DNA samples,
crime kit, which was handed over to the Police Officer, Sgt Mokolwa,
thereafter same was delivered
to Forensic Science Laboratories at
Pretoria on the 20 February 2017.
7.4.
The Applicant only give him his
passport number and not the actual passport.
7.5.
He went to the residential address
of the applicant, met a certain lady, who refused to give him his
particulars, that lady informed
him that applicant is residing there
but they are renting in that place.
7.6.
He is opposing Applicant being
granted bail because:
6.6.1 the family of applicant has send
a message to the minor child’s grandmother to the effect that
she will raise the child
while is in her grave. (Contravention of
Section 60(4)(c))
2.5cm
; margin-bottom: 0cm; line-height: 150%">
6.6.2 the issue of passport, applicant
only give him the number of the passport, applicant is only renting
where he is residing,
as a result he can vacate the said place at any
time or when he feels like it or when he wants to leave.
(Contravention of
Section 60(4)(b))
[8]
In considering the application for
bail, the learned Magistrate made the following pertinent findings
that impacted on his ruling
in this matter:
8.1.
He found that the doctor, who is an
expert in the field of medicine, completed the J88, which was
presented as evidence, that there
are injuries on the vagina, on the
labia majora, posterior fourchette. Whether the vagina was
injured as a result of penal
penetration or any other object, he
cannot at this stage say but it is clear that something was pushed
into her vagina.
8.2.
What or who injured the child, there
are no eyewitnesses, even though there is no eyewitness, because one
cannot expect an eyewitness,
in these types of offences, which
usually happens in greater privacy of secrecy, the law accept the
circumstantial evidence.
All the other witnesses who comes, and
testify, they are not real eyewitnesses.
8.3.
He came to the conclusion that at
this stage circumstantial evidence shows that the applicant was the
person in whose custody the
child was and should be able know what
actually happened to it (the child)
8.4.
He found that even though the
investigations are incomplete, it was the duty of the applicant to
have returned the child in a safe
condition and further there were no
exceptional circumstances in the case, as a result accused
application to be released on bail
was refused.
[9]
The grounds of appeal by the
Applicant which are attached to his Notice of appeal against the
Refusal of bail dated the 11
th
April 201, among others it stated that:
9.1.
The learned Magistrate erred in his
conclusion that there are no exceptional circumstances which in the
interest of justice permitted
the Applicant to be released on bail
9.2.
There is no direct evidence
implicating accused, as a result the respondent is relying on
the circumstantial evidence to oppose
the bail.
9.3.
The State case is weak based on the
fact that DNA results are still outstanding and the Magistrate
misdirected himself and was wrong
when he said there is a strong
prima facie evidence against the Applicant without DNA results.
9.4.
J88 submitted by the Respondent is
silent about the alleged offence. No injuries sustained by the victim
or suggest otherwise. The
victim’s parents suspects that she
was sexually assaulted.
[10]
The usual grounds normally raised
denying the release of an accused person on bail are provided
in the provisions section
60(4) of the Criminal Proceeding Act 51 of
1977 (hereinafter referred to as "the Act") which provides
as follows:.
[11]
"(4) The interest of justice do not
permit the release from detention of an
accused
where one or more of the following grounds are established:
(a) Where there is the likelihood that
the accused, if he or she were released on bail, will endanger the
safety of the public or
any particular person or will commit a
Schedule I offence; or
(b) Where there is the likelihood that
the accused, if he or she were released on bail will attempt to evade
his or her trial; or
(c) Where there is the likelihood that
the accused, if he or she were released on bail, will attempt to
influence or intimidate
witnesses or to conceal or destroy evidence;
or
(d) Where there is the likelihood that
the accused, if he or she were released on bail, will undermine or
jeopardize the objectives
or the proper functioning of the criminal
justice system, including the bail system;
(e) Where accused
will disturb the public order or undermine the public peace or
security;
[12]
It was common cause during the bail
proceedings in the court a quo that the appellant was charged with
Schedule 6 offence. Section
60(l1)(a) of the Act which provides that
notwithstanding any provision of the Act where an accused is
charged with an offence
referred to in Schedule 6, the court shall
order the accused to be detained in custody until he or she is dealt
with in accordance
with the law, unless the accused, having been
given a reasonable opportunity to do so, adduces evidence which
satisfies the court
that exceptional circumstances exist which in the
interest of justice permit his or her release.
[13]
It is trite that this court has no
authority to interfere with the discretion of the court a quo unless
if the court a quo has erred
or misdirected itself as clearly
stipulated in s 65 (4) of the Act that provides that: “The
court or judge hearing the appeal
shall not set aside the decision
against which the appeal is brought, unless such court or judge is
satisfied that the decision
was wrong, in which event the court or
judge shall give the decision which in its or his opinion the lower
court should have given."
[14]
The question before me is therefore
whether the court a quo erred in finding that the applicant did not
succeed in showing that
there were exceptional circumstances
entitling him to be released on bail and further by so doing he
exercised his discretion wrongly.
[15]
An applicant in a bail application is given
a broad scope to establish the requisite circumstances, whether they
relate to the nature
of the crime, the personal circumstances of the
applicant (accused) or anything else that is particularly cogent.
(See S v Dlamini;
S v Dladla & Others; S v Joubert, S v Schiet...
1999(2) SACR 51 (CC) in particular paragraphs [75] and [76] thereof.)
Personal
circumstances present to an exceptional degree, may lead to
a finding that release on bail is justified. (See S v Rudolph
2010(
1) SACR 262
(SCA).)
[16]
In the context of section 60(1 l)(a). The
exceptionality of the circumstances must be such as to persuade a
court that it would
be in the interest of justice to order the
release of the person of the accused. A certain measure of
flexibility in the judicial
approach to the question is required
.
(See S v Mohammed 1999(2) SACR 507 (C)
at 513F-515F.)
[17]
It would be futile to attempt to provide a
list of possibilities which will constitute such exceptional
circumstances. To incarcerate
an innocent person for an offence which
he did not commit could also be viewed as exceptional. It could not
have been the intention
of the legislature in section 60(4)(a)-(e) of
the Act. to legitimise at random the incarceration of persons who are
suspected of
having committed Schedule 6 offences, who after all must
be regarded as innocent until proven guilty in a court of law. (See S
v Jonas 1998(2) SACR 673 (SEC).)
[18]
Snyders JA in
S
v Rudoplh
2010 SACR
262
(SCA) at page 266e paragraph 8 and 9 wrote the following:
“
[8] …
Section 60(11)(a) of the Act prescribes that in the case of offences
falling within the ambit of Schedule 6 that –‘…
the court shall order that the accused be detained in custody until
he or she is dealt with in accordance with the law, unless
the
accused, having been given a reasonable opportunity to do so, adduces
evidence which satisfies the court that exceptional circumstances
exist which in the interests of justice permit his or her release’.
[9] The section places an onus on the applicant to produce
proof, on
a balance of probabilities, that ‘exceptional circumstances
exist which in the interests of justice permits his
release. It
contemplates an exercise in which the balance between the liberty
interests of the accused and the interests of society
in denying the
accused bail, will be resolved in favour of the denial of bail,
unless ‘exceptional circumstances’ are
shown by the
accused do exist. Exceptional circumstances do not mean that ‘they
must be circumstances above and beyond, and
generally different from
those enumerated’ in ss 60(4)-(9). In fact, ordinary
circumstances present to an exceptional degree,
may lead to a finding
that release on bail is justified.”
[19]
The court a quo, in refusing bail to
the Appellant, stated that respondent has a strong prima facie case
which is based on circumstantial
evidence against the applicant.
since the child was injured and the last person that the child was
with, was the applicant, and
as a result he should explain where does
the injuries that were found on the child comes from
[20]
Prima facie evidence is subject to be
tested during trial. The impact of such prima facie evidence in a
bail application should
be seen to be minimised by lack of evidence
of the likelihood that if released on bail, the accused will attempt
to influence or
intimidate witnesses or to attempt or destroy
evidence. Or contravene any of the provisions of section 60(4) of the
Act. No such
a suggestion against the appellant was made. The
likelihood of the appellant evading trial other than to suggest a
strong case,
was not established. Also from the reading of the
Learned Magistrate judgement he only dealt, concentrated on, the
strength of
the state case but left out other issues.
[21]
In this matter the victim is a 3
year child, and as correctly pointed out by the Learned Magistrate,
there is no eye witness.
The state would be bound to rely on
circumstantial evidence based on expert witnesses regarding
professional or medically physical
or psychological examinations of
the victim. The State alleges that DNA has been taken (obtained) from
the victim but according
to J88 there is no serial number on it,
doctor has indicated not applicable (n/a), therefore the question is
which DNA result is
being awaited for. However counsel for the
Respondent, during his argument in court, has indicated that that was
an error,
there is serial number, but it was omitted by mistake from
writing it on the J88 form. This may not be an easy mountain to
climb,
where the state has to prove its case beyond reasonable doubt
[22]
In the matter of S
v
DV
2012 (2) SACR
,
the court held that: “The court a quo had proceeded from a
wrong premise, which made it concentrate only on the seriousness
of
the offence without dealing with the case whether, if released on
bail, the Appellants would interfere or intimidate state witnesses,
or whether their personal circumstances were such that they would not
stand trial."
[23]
Subsection (9) provides that in
considering the question in subsection (4), the court shall decide
the matter weighing the interests
of justice against the right of the
accused to his or her freedom and in particular, the prejudice he or
she is likely to suffer
if he or she were to be detained in custody
taking into account where applicable the following factors:
"(a) the period for which the
accused has already been in custody since or her arrest;
(b) the probable period of detention
until the disposal or conclusion of the trial if the accused is not
released on bail;
(c) the reason for any delay in the
disposal or conclusion of the trial and any fault on the part of the
accused with regard to
such delay;
(d) any financial loss which the
accused may suffer owing to his or her detention;
(e) any impediment to the preparation
of the accused’s defense or any delay in obtaining legal
representation which may be
brought about by the detention of the
accused;
(f) the state of health of the
accused; or
(g) any other factor which in the
opinion of the court should be taken into account.
[24]
To suggest that any of these factors
do not have to be taken into account, where an applicant in a bail
application under Schedule
6, faces a hurdle to establish the
existence of exceptional circumstances, in my view, would amount to
summarily refusal to release
an applicant under section 60.
[25]
It is therefore important to note
that neither personal circumstances nor any of the factors in s 60
(4), more particularly in this
matters s 60 (4) (b) and (c) reasons
why the investigating officer was opposing bail, can be considered in
isolation but are together
of equal importance when deciding on the
interest of justice. The court is as well required in exercising its
discretion, to balance
the interest of justice and the constitutional
right of the Applicant to liberty in that way. The likelihood of the
applicant absconding.
[26]
If there is no risk of an applicant
absconding if bail is to be granted, a court should lean in favour
granting bail. See
S v Anderson
1991 (1) SACR 525
(C) at 527 B-G;
S v
Hudson
1996 (1) SACR 431
(W) at 434
A-D;
Bailey and Others v The State
[2013] ZAKZPHC 72 at paragraph 29.
[27]
Among the grounds of appeal against
refusal of bail applicant has submitted that the presumption of
innocence operates in favour
of the Applicant even when there is a
prima facie case against him.
[28]
The applicant’s right to be
presumed innocent is not a bail right but a trial right as was
plainly pointed out in S
v Dlamini
[1999] ZACC 8
;
1999 (2) SACR 51
(CC)
(1999 (4) SA 623
;
1999 (7) BCLR 771).
Fittingly, the duty of the court in a bail application is to
prima
facie
determine the relative strength
of the state case against the bail applicant as opposed to making a
provisional finding of guilt
or innocence of such an applicant.
[29]
The learned Magistrate, during the
delivery of his judgement it seemed he made provisional finding of
the guilt of the applicant
at page 48 of the record “I have
tried many cases of rape. I have never seen a case where an accused
person will rape somebody
where there would be witnesses.
[30]
He went on further “Whether it
is penal penetration or any other object, it will remain rape,
because so far our definition
of rape has been widened as a result of
the coming into effect of the Sexual offences act 32 of 2007
[31]
He did not attach any wait to
applicants brothers affidavit, he dismissed same by saying that
“maybe the fact that the brother
of the accused also filed an
affidavit, well, cannot expect the brother of the accused to
make a statement which will expose
the accused”
[32]
Therefore the learned magistrate
could not dealt with the innocence or guilt of the Applicant but only
with a fact whether or not
the Respondent has established a prima
facie case against the Applicant that makes his continued
incarceration to be in the interest
of justice. A determination that
is to be made in consideration with other various factors that has
been highlighted by s 60 (4),
the injuries as stated in J88 and all
the other factors that revealed a strong case against the Applicant
plus the possibility
that he might influence or interfere with the
witnesses, flight risk, and the seriousness of the offence. S
v
Van Wyk
2005 (1) SACR 41
(SCA).
[33]
The Learned Magistrate did not make
any funding with the risk of the Applicant absconding. The appellant
was arrested on the 14
th
February 2017. Prior to his arrest, according to his affidavit, which
has not been disputed, he received an message from the grandmother
of
the victim saying he should not come and collect the child to crèche,
he then inquired from the crèche what is
problem, of which he
was informed that the family of the victim has laid charges of child
molestation against him at the police
station, he then proceeded to
the Sebenza Police station wherein he was informed that they do not
have such case. He then proceeded
to the child’s (victim’s
home) to go and inquire what the problem was. The police where then
called and he was then
arrested.
[34]
The actions of the applicant does
not show any tendency of a person who is a flight risk, if he
really wanted to run away
he could upon hearing that a case of child
molestation has been opened against him then decide to run away.
[35]
It is not in dispute that he has a
valid passport, notwithstanding the fact that the state, the police,
did not go and verify its
authenticity with the Department of Home
affairs.
[36]
There is thus very little risk of
the applicant absconding. The true consideration is therefore whether
or not the Appellant would
stand trial
[37]
It is noted that Applicant is aware
and knows where the family, and victim resides, however due to
the fact that the state
did not pursue or abandoned, during its
submission at the bail hearing, the alleged intimidation of
witnesses by applicant
or his family and also the Learned Magistrate
did not deal with it during his judgement, am satisfied that the
applicant will not
interfere with witnesses
[38]
I am satisfied that the applicant
during his bail application succeeded in showing that he is not
flight risk, that other than the
offence he is presently facing, he
had been law abiding citizen and thus dispelling the idea of
reoffending, his further incarceration
would deprive him of earning a
living and that the likelihood of interfering, intimidating or
influencing state witnesses was almost
zero regard been had to the
fact that the court will impose conditions upon him.
[39]
Bail conditions have always served
to ensure that whatever fears the state might have in the release of
an accused person is taken
care of. It is a necessary consideration
as also envisaged in section 60(6) which provides that in considering
whether the ground
in subsection (4)(b) and (c) has been established,
the court may, where applicable, take into account the binding effect
and enforceability
of bail conditions which may be imposed and the
ease with which such conditions could be breached
[40]
In
S v Branco
2002(1)
SACR 531 (SCA) at page
533
Cachalia
AJ
held:
"The
fundamental objective of the institution of bail in
the
democratic
society based on freedom is to maximise personal liberty
.
The proper approach to a decision in
the
bail
application is that: The court will always grant
bail
where
possible, and will lean in favour of and not against the liberty of
the subject provided that it is clear that the interests
of justice
will not be prejudiced thereby." (Court emphasis)
[41]
The State case is based on
circumstantial evidence,
the
appellant has co-operated with the police, Each of the provisions of
section 60(4) (a - e) have been taken into consideration
and there
does not seem a reason for not granting bail
[42]
That being so, I conclude that the
Learned Magistrate in the court a quo, exercised his discretion
wrongly in concluding that there
were no exceptional circumstances in
the case and as a result applicant is entitled to be released
on bail pending finalisation
of his trial
[43]
The appeal against the refusal of
release on bail in respect of appellant is hereby upheld and the
decision refusing the bail application
is hereby set aside and
substituted as follows:
43.1 Accused is granted bail in the
amount of R10 000,00 (Ten Thousand Rand) on the following conditions:
43.1.1
that accused appear and remain
in attendance at each and every date to which this matter is
postponed until excused by the court
43.1.2 that accused must report twice
per week, that is, on Mondays between 06:00 and 09:00 and on Fridays
between 18:00 to 21:00
at the Sebenza/ Edenvale Police Station;
43.1.3 that accused may not have any
contact or communication, directly or indirectly, with any of the
state witnesses;
43.1.4
that accused
surrender his
passport and other travel documents to the Station Commissioner,
Sebenza/Edenvale SAPS, and do not apply for any new
travel documents
without the leave of the court
.
43.1.5 that accused may not leave the
jurisdictional area of the City of Ekurhuleni save with the written
permission of the investigating
officer in this matter;
43.1.6 that accused would reside at
[…] C. Avenue Eastley Edenvale until finalisation of this
matter.
43.1.7 that accused will notify the
Investigating officer of any changes of his address and such
notification to be given at least
seven days before moving out of the
known address to the investigating officer;
43.1.8 that the investigating officer
is hereby forthwith directed to furnish the station commissioner of
Sebenza/ Edenville Police
Station with the court order herein.
43.1.9 that the station commissioner
of Sebenza/ Edenville police station or any person designated thereto
by the station commissioner
Sebenza/ Edenville police station, is
hereby directed to immediately inform the investigating officer
should accused herein default
in reporting as set out in above.
________________________
C
K Matshitse
Acting Judge of the High Court
Gauteng Local Division, Johannesburg
Heard
08 May 2017
Judgment
delivered: 12 May 2017
Appearances
:
For
Appellant: Mr A J Masiye
Instructed
by: AJ Masiye Attorneys
For
Respondent: Adv Ntlakaza
Instructed
by: Office of the DPP